ASSOCIATION
GOVERNING
DOCUMENTS
Understanding your Association’s
Documents
I.
The Ground Level – Your Governing Documents
A. Declaration
1. Declaration is the recorded document that affects and attaches
to the title to the real property within the Association
2. Likely where your powers are:
•
Assessments
•
Violations
•
Attorneys fees/late fees
•
The activities and items the Association has the power to
regulate
3. Difficult to amend – usually requires a super-majority of
members (75%)
4. Typical Topics: Membership, Voting Rights, Property Rights,
Assessments, Party Walls (for townhomes), Architectural
Control, Exterior Maintenance/Use Restrictions, Easements,
Insurance, Rights of Mortgagees,
B. Bylaws
1. Not recorded (unless you are in a
condominium; condominium bylaws contain
similar topics to that included in an HOA’s
Declaration)
2. Instructions on meetings, boards, voting, and
general operation of the Association
3. More easily changed, usually just by Board vote
4. Not as effective in regards to enforcement
because the provisions within the Bylaws
usually do not run with the land (unless condo)
C. Articles of Incorporation
1. Sometimes voting powers are here.
2. Sometimes Art of Inc. are “a head in line” to the
Bylaws, just as the Declaration is usually ahead
of the Bylaws (for HOAs)
3. Art of Inc. are only available where your entity is
a corporation
• On file at VA State Corporation Commission
• If your association is not incorporated, you
will not have Art of Inc.
D. Rules/Regulations
1. These are rules for conduct on common area
2. Can also include design guidelines within
Architectural Guidelines
3. Enacted through Board action/no homeowner
action required
E. Policies/Procedures
1. These are procedures for how the Association
conducts itself
a. Collections Resolution
• Demand letters, late fees, etc.
• Keep in mind Va Code §55-513.3
(amended in 2014)
F. Reviewing Governing Documents
1. How often should governing documents be reviewed?
- The more difficult it is to change the document, the less often it
should be reviewed. Policies and procedures can be reviewed much
more frequently than a HOA declaration because a policy and
procedure is easier to change than a Declaration. This helps keep
costs down, as an Association considering a Declaration or Bylaw
amendment may face significant effort and costs over a long time
period in order to achieve the intended outcome.
Considerations:
-How old is the document?
-Have the circumstances changed? E.g., Has the Association had
difficulty reaching quorum? Has the community changed?
-What is the community like now compared to when the developer
completed construction?
2. Who should review governing documents with an eye toward
identifying areas that should be amended/changed?
-Board of Directors
- Managers
- Legal Counsel
G. Amending Governing Documents
1. Requirements: Often a supermajority vote of the entire
membership is required. Consideration: What is the typical
turnout for Board and annual meetings?
2. Timeline: Amending governing documents can take
significant time, as the amendments not only need to be
drafted, but also the requisite number of votes must be
received.
3. Mortgagee Consent may be required
55-515.1 A. In the event that any provision in the declaration requires the written consent of a mortgagee
in order to amend the bylaws or the declaration, the association shall be deemed to have received the
written consent of a mortgagee if the association sends the text of the proposed amendment by certified
mail, return receipt requested, or by regular mail with proof of mailing to the mortgagee at the address
supplied by such mortgagee in a written request to the association to receive notice of proposed
amendments to the declaration and receives no written objection to the adoption of the amendment from
the mortgagee within 60 days of the date that the notice of amendment is sent by the association, unless
the declaration expressly provides otherwise. If the mortgagee has not supplied an address to the
association, the association shall be deemed to have received the written consent of a mortgagee if the
association sends the text of the proposed amendment by certified mail, return receipt requested, to the
mortgagee at the address filed in the land records or with the local tax assessor's office, and receives no
written objection to the adoption of the amendment from the mortgagee within 60 days of the date that the
notice of amendment is sent by the association, unless the declaration expressly provides otherwise.
4. SIGNATURES REQUIRED….
Steven F. Tvardek, Jr., et al. v. Powhattan Village Homeowners Association, Inc.
(Virginia Supreme Court)
- 55-515.1 (E). An action to challenge the validity of an amendment adopted by the association may
not be brought more than one year after the amendment is effective.
55-515.1E (F). Agreement of the required majority of lot owners to any amendment of the
declaration shall be evidenced by their execution of the amendment, or ratifications thereof, and
the same shall become effective when a copy of the amendment is recorded together with a
certification, signed by the principal officer of the association or by such other officer or officers as
the declaration may specify, that the requisite majority of the lot owners signed the amendment or
ratifications thereof.
-Certification filed with the amendment cannot merely state that the requisite majority of the low
owners approved the amendment. The certificate must state the the requisite number of owners
SIGNED the amendment or ratification. Best to record the signatures. (Exception : Condos)
Condominium Act: The statute of limitations for challenging an amendment is related to when the
amendment is recorded and does not impose the signature requirement.
2015/2016 Legislative Updates
Condo Act Changes in 2015:
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§ 55-79.42:1. Association charges.
Except as expressly authorized in this chapter, in the condominium instruments, or as otherwise
provided by law, no unit owners' association may make an assessment or impose a charge
against a unit owner unless the charge is (i) authorized under § 55-79.83, (ii) a fee for services
provided, or (iii) related to the provisions set out in § 55-79.97:1. The Common Interest
Community Board may assess a monetary penalty for a violation of this section against any (a)
unit owners' association pursuant to § 54.1-2351 or (b) common interest community manager
pursuant to § 54.1-2349, and may issue a cease and desist order pursuant to § 54.12349 or 54.1-2352, as applicable.
2015/2016 Legislative Updates
Condo Act Changes in 2015:
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§ 55-79.87:1. Rental of units.
A. Except as expressly authorized in this chapter or in the condominium instruments or as
otherwise provided by law, no unit owners' association may condition or prohibit the rental of a
unit to a tenant by a unit owner or make an assessment or impose a charge except as provided
in § 55-79.42:1.
B. Except as expressly authorized in this chapter or in the condominium instruments, no unit
owners' association shall:
1. Charge a rental fee, application fee, or other processing fee of any kind in excess of $50 as a
condition of approval of such a rental during the term of any lease;
2. Require the unit owner to use a lease prepared by the unit owners' association; or
3. Charge a security deposit from the unit owner or the tenant of the unit owner.
C. The unit owners' association may require the unit owner to provide the unit owners'
association with a copy of any (i) lease with a tenant or (ii) unit owners' association document
completed by the unit owner or representative that discloses the names and contact information
of tenant and occupants under the lease. The unit owners' association may require the unit
owner to provide the unit owners' association with the tenant's acknowledgement of and consent
to any rules and regulations of the unit owners' association.
2015/2016 Legislative Updates
Condo Act Changes in 2015:
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§ 55-79.97. Resale by purchaser.
D. The seller or his authorized agent may request that the resale certificate be provided in hard copy or in
electronic form. A unit owners' association or common interest community manager may provide the resale
certificate electronically; however, the seller or his authorized agent shall have the right to request that the
resale certificate be provided in hard copy. The seller or his authorized agent shall continue to have the
right to request a hard copy of the resale certificate in person at the principal place of business of the unit
owners' association. If the seller or his authorized agent requests that the resale certificate be provided in
electronic format, neither the unit owners' association nor its common interest community manager may
require the seller or his authorized agent to pay any fees to use the provider's electronic network or
system. The resale certificate shall not be delivered in hard copy if the requestor has requested delivery of
such resale certificate electronically. If the resale certificate is provided electronically by a website link, the
preparer shall not cause the website link to expire within the subsequent 90-day period. The preparer shall
not charge another fee during the subsequent 12-month period, except that the preparer may charge an
update fee of $50 as provided in § 55-79.97:1 after the expiration of the 90-day period from the date of
issuance of such certificate. If the seller or his authorized agent asks that the resale certificate be provided
in electronic format, the seller or his authorized agent may designate no more than two additional
recipients to receive the resale certificate in electronic format at no additional charge request that an
electronic copy be provided to each of the following named in the request: the seller, the seller's
authorized agent, the purchaser, the purchaser's authorized agent, and not more than one other person
designated by the requestor. If so requested, the unit owners' association or its common interest
community manager may require the seller or his authorized agent to pay the fee specified in § 5579.97:1. The preparer of the resale packet shall provide such resale packet directly to the designated
persons.
2015/2016 Legislative Updates
POAA Act Changes in 2015:
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§ 55-509.3. Association charges.
Except as expressly authorized in this chapter, in the declaration, or otherwise provided by law,
no association may (i) make an assessment or impose a charge against a lot or a lot owner
unless the charge is a fee for services provided or related to use of the common area or (ii)
charge a fee related to the provisions set out in § 55-509.6 or 55-509.7 that is not expressly
authorized in those sections. Nothing in this chapter shall be construed to authorize an
association or common interest community manager to charge an inspection fee for an
unimproved or improved lot except as provided in § 55-509.6 or 55-509.7. The Common Interest
Community Board may assess a monetary penalty for a violation of this section against any (a)
association pursuant to § 54.1-2351 or (b) common interest community manager pursuant to
§ 54.1-2349, and may issue a cease and desist order against the violator pursuant to § 54.12349 or 54.1-2352, as applicable.
2015/2016 Legislative Updates
POAA Act Changes in 2015:
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§ 55-509.3:1. Rental of lots.
A. Except as expressly authorized in this chapter or in the declaration or as otherwise provided by
law, an association may not condition or prohibit the rental to a tenant of a lot by a lot owner or
make an assessment or impose a charge except as provided in § 55-509.3.
B. Except as expressly authorized in this chapter or in the declaration, no association shall:
1. Charge a rental fee, application fee, or other processing fee of any kind in excess of $50 as a
condition of approval of such a rental during the term of any lease;
2. Require the lot owner to use a lease prepared by the association; or
3. Charge a security deposit from the lot owner or the tenant of the lot owner.
C. The association may require the lot owner to provide the association with a copy of any (i)
lease with a tenant or (ii) association document completed by the lot owner or representative
that discloses the names and contact information of the tenant and occupants under such lease.
The association may require the lot owner to provide the association with the tenant's
acknowledgement of and consent to any rules and regulations of the association.
2015/2016 Legislative Updates
POAA Act Changes in 2015:
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§ 55-509.5. Contents of association disclosure packet; delivery of packet.
D. The seller or his authorized agent may request that the disclosure packet be provided in hard
copy or in electronic form. An association or common interest community manager may provide
the disclosure packet electronically; however, the seller or his authorized agent shall have the
right to request that the association disclosure packet be provided in hard copy. The seller or his
authorized agent shall continue to have the right to request a hard copy of the disclosure packet
in person at the principal place of business of the association. If the seller or his authorized
agent requests that the disclosure packet be provided in electronic format, neither the
association nor its common interest community manager may require the seller or his authorized
agent to pay any fees to use the provider's electronic network or system. The disclosure packet
shall not be delivered in hard copy if the requestor has requested delivery of such disclosure
packet electronically. If the disclosure packet is provided electronically by a website link, the
preparer shall not cause the website link to expire within the subsequent 90-day period. The
preparer shall not charge another fee during the subsequent 12-month period, except that the
preparer may charge an update fee of $50 as provided in § 55-509.6 after the expiration of the
90-day period from the date of issuance of such packet. If the seller or his authorized agent asks
that the disclosure packet be provided in electronic format, the seller or his authorized agent
may designate no more than two additional recipients to receive the disclosure packet in
electronic format at no additional charge.
2015/2016 Legislative Updates
POAA Act Changes in 2015:
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§ 55-509.5. Contents of association disclosure packet; delivery of packet.
D. The seller or his authorized agent may request that the disclosure packet be provided in hard
copy or in electronic form. An association or common interest community manager may provide
the disclosure packet electronically; however, the seller or his authorized agent shall have the
right to request that the association disclosure packet be provided in hard copy. The seller or his
authorized agent shall continue to have the right to request a hard copy of the disclosure packet
in person at the principal place of business of the association. If the seller or his authorized
agent requests that the disclosure packet be provided in electronic format, neither the
association nor its common interest community manager may require the seller or his authorized
agent to pay any fees to use the provider's electronic network or system. The disclosure packet
shall not be delivered in hard copy if the requestor has requested delivery of such disclosure
packet electronically. If the disclosure packet is provided electronically by a website link, the
preparer shall not cause the website link to expire within the subsequent 90-day period. The
preparer shall not charge another fee during the subsequent 12-month period, except that the
preparer may charge an update fee of $50 as provided in § 55-509.6 after the expiration of the
90-day period from the date of issuance of such packet. If the seller or his authorized agent asks
that the disclosure packet be provided in electronic format, the seller or his authorized agent
may designate no more than two additional recipients to receive the disclosure packet in
electronic format at no additional charge.
2015/2016 Legislative Updates
Condo Act Changes in 2016:
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§ 55-79.87:1. Rental of units.
A. Except as expressly authorized in this chapter or in the condominium instruments or
as otherwise provided by law, no unit owners' association may condition or prohibit the
rental of a unit to a tenant by a unit owner or make an assessment or impose a charge
except as provided in § 55-79.42:1.
B. Except as expressly authorized in this chapter or in the condominium instruments, no
unit owners' association shall:
1. Condition or prohibit the rental of a unit to a tenant by a unit owner or make an
assessment or impose a charge except as provided in § 55-79.42:1;
2. Charge a rental fee, application fee, or other processing fee of any kind in excess of
$50 as a condition of approval of such a rental during the term of any lease;
2. 3. Charge an annual or monthly rental fee or any other fee not expressly authorized in
§ 55-79.42:1;
4. Require the unit owner to use a lease or an addendum to the lease prepared by the
unit owners' association; or
3. 5. Charge a security any deposit from the unit owner or the tenant of the unit owner.;
or
2015/2016 Legislative Updates
Condo Act Changes in 2016:
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6. Have the authority to evict a tenant of any unit owner or to require any unit owner to execute a
power of attorney authorizing the unit owners' association to so evict. However, if the unit owner
designates a person licensed under the provisions of § 54.1-2106.1 as the unit owner's
authorized representative with respect to any lease, the unit owners' association shall recognize
such representation without a formal power of attorney, provided that the unit owners'
association is given a written authorization signed by the unit owner designating such
representative. Notwithstanding the foregoing, the requirements of § 55-79.77 and the
condominium instruments shall be satisfied before any such representative may exercise a vote
on behalf of a unit owner as a proxy.
C. B. The unit owners' association may require the unit owner to provide the unit owners'
association with a copy of any (i) lease with a tenant or (ii) unit owners' association document
completed by the unit owner or representative that discloses the names and contact information
of tenant the tenants and authorized occupants under the such lease and any authorized agent
of the unit owner, and vehicle information for such tenants or authorized occupants. The unit
owners' association may require the unit owner to provide the unit owners' association with the
tenant's acknowledgement of and consent to any rules and regulations of the unit owners'
association.
C. The provisions of this section shall not apply to units owned by the unit owners' association.
2015/2016 Legislative Updates
POAA Changes in 2016:
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§ 55-509.3:1. Rental of lots.
A. Except as expressly authorized in this chapter or in the declaration or as otherwise provided by
law, an association may not condition or prohibit the rental to a tenant of a lot by a lot owner or
make an assessment or impose a charge except as provided in § 55-509.3.
B. Except as expressly authorized in this chapter or in the declaration, no association shall:
1. Condition or prohibit the rental to a tenant of a lot by a lot owner or make an assessment or
impose a charge except as provided in § 55-509.3;
2. Charge a rental fee, application fee, or other processing fee of any kind in excess of $50 as a
condition of approval of such a rental during the term of any lease;
2. 3. Charge an annual or monthly rental fee or any other fee not expressly authorized in § 55509.3;
4. Require the lot owner to use a lease or an addendum to the lease prepared by the
association; or
3. 5. Charge a security any deposit from the lot owner or the tenant of the lot owner.; or
2015/2016 Legislative Updates
POAA Changes in 2016:
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6. Have the authority to evict a tenant of any lot owner or to require any lot owner to execute a
power of attorney authorizing the association to so evict. However, if the lot owner designates a
person licensed under the provisions of § 54.1-2106.1 as the lot owner's authorized
representative with respect to any lease, the association shall recognize such representation
without a formal power of attorney, provided that the association is given a written authorization
signed by the lot owner designating such representative. Notwithstanding the foregoing, the
requirements of § 55-515 and the declaration shall be satisfied before any such representative
may exercise a vote on behalf of a lot owner as a proxy.
C. B. The association may require the lot owner to provide the association with a copy of any (i)
lease with a tenant or (ii) association document completed by the lot owner or representative
that discloses the names and contact information of
the tenant tenants and authorized occupants under such lease and any authorized agent of the
lot owner, and vehicle information for such tenants or authorized occupants. The association
may require the lot owner to provide the association with the tenant's acknowledgement of and
consent to any rules and regulations of the association.
C. The provisions of this section shall not apply to lots owned by the association.
2015/2016 Legislative Updates
POAA Changes in 2016:
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6. Have the authority to evict a tenant of any lot owner or to require any lot owner to execute a
power of attorney authorizing the association to so evict. However, if the lot owner designates a
person licensed under the provisions of § 54.1-2106.1 as the lot owner's authorized
representative with respect to any lease, the association shall recognize such representation
without a formal power of attorney, provided that the association is given a written authorization
signed by the lot owner designating such representative. Notwithstanding the foregoing, the
requirements of § 55-515 and the declaration shall be satisfied before any such representative
may exercise a vote on behalf of a lot owner as a proxy.
C. B. The association may require the lot owner to provide the association with a copy of any (i)
lease with a tenant or (ii) association document completed by the lot owner or representative
that discloses the names and contact information of
the tenant tenants and authorized occupants under such lease and any authorized agent of the
lot owner, and vehicle information for such tenants or authorized occupants. The association
may require the lot owner to provide the association with the tenant's acknowledgement of and
consent to any rules and regulations of the association.
C. The provisions of this section shall not apply to lots owned by the association.
2015/2016 Legislative Updates
POAA Changes in 2016:
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§ 55-509.5. Contents of association disclosure packet; delivery of packet.
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D. The seller or his the seller's authorized agent may request that the disclosure packet be provided in hard copy or in
electronic form. An association or common interest community manager may provide the disclosure packet
electronically; however, the seller or histhe seller's authorized agent shall have the right to request that the association
disclosure packet be provided in hard copy. The seller or his the seller's authorized agent shall continue to have the
right to request a hard copy of the disclosure packet in person at the principal place of business of the association. If
the seller or his the seller's authorized agent requests that the disclosure packet be provided in electronic format,
neither the association nor its common interest community manager may require the seller or his the
seller's authorized agent to pay any fees to use the provider's electronic network or system. The disclosure packet shall
not be delivered in hard copy if the requestor requester has requested delivery of such disclosure packet electronically.
If the disclosure packet is provided electronically by a website link, the preparer shall not cause the website link to
expire within the subsequent 90-day period. The preparer shall not charge another fee during the subsequent 12month period, except that the preparer may charge an update fee of $50 for a financial update or for an inspection as
provided in § 55-509.6 after the expiration of the 90-day period from the date of issuance of such packet. If the seller
or his authorized agent asks that the disclosure packet be provided in electronic format, the seller or his authorized
agent may designate no more than two additional recipients to receive the disclosure packet in electronic format at no
additional charge. If the seller or the seller's authorized agent asks that the disclosure packet be provided in electronic
format, the seller or the seller's authorized agent may request that an electronic copy be provided to each of the
following named in the request: the seller, the seller's authorized agent, the purchaser, the purchaser's authorized
agent, and not more than one other person designated by the requester. If so requested, the property owners'
association or its common interest community manager may require the seller or the seller's authorized agent to pay
the fee specified in § 55-509.6. Regardless of whether the disclosure packet is delivered in paper form or
electronically, the preparer of the disclosure packet shall provide such disclosure packet directly to the persons
designated by the requester to the addresses or, if applicable, the email addresses provided by the requester.
.
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2015/2016 Legislative Updates
POAA Changes in 2016:
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§ 55-509.6. Fees for disclosure packet; professionally managed associations.
6. A post-closing fee to the purchaser of the property, collected at settlement, for the purpose of
establishing the purchaser as the owner of the property in the records of the association, a fee not to
exceed $50.
Except as otherwise provided in subsection E, neither the association nor its common interest community
manager shall require cash, check, certified funds or credit card payments at the time the request for the
disclosure packet is made. The disclosure packet shall state that all fees and costs for the disclosure
packet shall be the personal obligation of the lot owner and shall be an assessment against the lot and
collectible as any other assessment in accordance with the provisions of the declaration and § 55-516, if
not paid at settlement or within 45 60 days of the delivery of the disclosure packet, whichever occurs first.
For purposes of this section, an expedite fee shall only be charged if the inspection and preparation of
delivery of the disclosure packet are completed within five business days of the request for a disclosure
packet.
Questions?
Heather R. Steele, Esq.
703-583-6060
[email protected]